Citation: C.J. vs. Aviva Insurance Canada, 2020 ONLAT 18-007905/AABS

Released Date: 09/17/2020

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

C.J.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Jeffrey Shapiro, Vice Chair

APPEARANCES:

For the Applicant:

Andrew Suboch and Adam Steingart, Counsel

For the Respondent:

Amanda Fowler and Maya Kanani, Counsel

Court Reporter:

Sarah Cooper

HEARD:

In-Person

OVERVIEW

[ 1 ] On April 21, 2016, C.J.’s vehicle was T-boned, resulting in substantial damage to her vehicle. She sought a Non-Earner Benefit (“NEB”) and medical benefits from Aviva Insurance Canada (“Aviva”) under the Statutory Accident Benefits Schedule - Effective September 1, 2010 (O. Reg. 34/10, the ''Schedule''). Aviva denied her application for the NEB, and C.J. appealed to this Tribunal.

ISSUES

[ 2 ] The sole issue in dispute, as confirmed by the parties, is: “Is C.J. entitled to a Non-Earner Benefit of $185 per week from November 10, 2016 to April 20, 2018 to date and ongoing, plus interest?”¹

RESULT

[ 3 ] I find that while C.J. suffered impairments from the accident and her daily life was affected, she does not meet the test for a NEB and is not entitled to it or interest.

Analysis

[ 4 ] The Schedule provides that an insurer shall pay an NEB to an insured that suffers “a complete inability to carry on a normal life” as a result of the accident, that “continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”² The insured bears the onus to show her entitlement on a balance of probabilities.

[ 5 ] Accident-related impairments or life changes are not enough. As the Court of Appeal explained, the “complete inability” analysis requires a comparison of pre- and post-accident functionality, with consideration to the following factors: ³

a. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable case-specific period prior to the accident;

b. Consideration of "substantially all" means all of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life;

c. Accident-related injuries must “continuously prevent” engaging in substantially all pre-accident activities, on an uninterrupted basis;

d. “Engaging in" an activity is a qualitative perspective, requiring more than isolated attempts, and considering significant restrictions and quality; and

e. If pain is a primary factor, the focus should not be if the applicant can perform those activities, but if the pain “practically prevents” the activities.

The parties’ positions and evidence overview

[ 6 ] C.J. submits that virtually all her activities of daily living were affected. She was unable to perform her self care, cultural homemaking activities, socialize or go to the gym, causing her weight gain and affecting her ability to have a child – all contributing to the break-up of her marriage. She submits Aviva’s Independent Examinations (“IEs”) should be given little weight for the reasons below and, despite Aviva challenging her reliability, she withstood cross-examination.

[ 7 ] Aviva disputes the severity of the accident related impairments based on its IEs and lack of medical support. It argues that C.J.’s inability to work, marital issues and other restrictions existed prior to the accident. Aviva contends that C.J.’s testimony is unreliable, inconsistent and that corroborating evidence is missing.

[ 8 ] While C.J. was the only witness to testify, the timing of the written and video evidence is important. The accident was on April 21, 2016; Aviva conducted its IEs from October 31 to November 10, 2016 – about 6 months later coinciding with start of NEB claim period. The NEB sought is from the last IE to April 20, 2018. Surveillance occurred in April 2019 – after the claim period. Family doctor records (“CNRs”) from before and after accident (June 2014 to March 2018) and tax return records from 2014 to 2018 were also supplied.

The Basic Claim - C.J.’s Testimony

[ 9 ] C.J. relied on her own testimony to establish her pre and post accident functionality and activities, and how the change was due to the accident. She explained that she married in 2013 and, at the time of the accident, was 30 with some college education in HR, but no degree. C.J. felt 90% recovered from the back, neck and knee injuries from her 2010 and 2011 accidents, and had stopped taking painkillers and medication, but did take Naproxen when her feet would swell on rainy days. In fact, she felt that despite prior physical and marital issues, her life was in order for about a year-and-a-half prior to the accident.

[ 10 ] C.J. testified that she did not work outside the home and her daily activities were:

a. Going to the gym five times a week to lose weight in hopes of improving her chances of pregnancy. She attended in the morning, often a 2^nd time in the afternoon, socializing and doing Zumba and classes. The exercise was important because she is B12- and iron-deficient, and it helps with her energy level.

b. Grocery shopping, cleaning, and cooking for her husband, single brother, niece and a friend. She often made elaborate cultural meals taking 2-3 hours to prep as, in her husband’s culture, men don’t cook.

c. Socializing with her husband, including movies, bars, restaurant, family events and clubs. She described “partying”, particularly with her husband’s cricket team’s events, and how his culture – which became her culture – involved drinking and partying, cricket clubs, and the importance of her, as a wife, to attend with family and friends. The events often started at 10:00 pm and coming home at 5:00 am. She became a ‘social organizer’.

[ 11 ] Unfortunately, it all stopped after the accident which affected “everything”. The airbags deployed and the vehicle was written off. She sustained injuries to her back and neck, and right thigh and hand. She felt her “brain was shook up a bit” and her anxiety remains “through the roof”. As a result of her anxiety, she testified she still doesn’t drive on rainy days.

[ 12 ] For treatment, C.J. saw her family doctor, Dr. Arif, after the accident and received prescriptions. Physiotherapy did not help much. She now gets massages from an unnamed practitioner, but only Dr. Arif’s CNRs were submitted.

[ 13 ] C.J. described how the accident affected her. At first, she had trouble showering, doing her hair, or cooking – in her words, “everything was really hard”. A month later, her niece moved in and “does anything I need, for me, under the condition she lives with me for free. So, she does – she does the cooking, cleaning and everything.”

[ 14 ] C.J. stopped going to the gym and, after three months, put the membership on hold, and hasn’t returned, contributing to a 40-pound weight gain affecting fertility, with the peak about a year after the accident. She stopped participating in the cricket club’s social events, limited intimacy and did not have children – her husband’s resentment. They separated in October 2016 (six months post-accident), and six months later it was a full divorce.

[ 15 ] She feels she lost her marriage to the accident, her niece still takes care of her, and her activities still haven’t returned to normal, including not returning to the gym. She feels she’s still "messed up from everything".

The focus of the disputes

[ 16 ] C.J.’s testimony – if accurate – could establish her claim. However, when I consider it against her own prior statements, other evidence, and missing evidence, all addressed below, I find her version of events is at most possible, but not probable.

a. The medical evidence does not support C.J.’s claims

[ 17 ] Despite testifying that the accident severely affected “everything”, C.J. did not submit any expert medical evidence, or even a family doctor’s letter or disability note, that supports her claim. At that, C.J. only supplied her family doctor’s CNRs, which document numerous visits and referrals about general health issues but contain only few entries mentioning the accident. Those few attendances also contradict C.J.’s statement during Ms. Goldlust’s IE (see below) that she saw her family doctor 2 to 3 times a month due to her accident related symptoms. C.J. also admits she has not sought treatment from Aviva since August 2017 or so.

[ 18 ] In contrast, Aviva submitted three unrefuted IE reports⁴ that found C.J. did not suffer impairments that prevented her from conducting her daily activities. In fact, orthopaedist Dr. Abuzgayg found “no objective evidence of any residual musculoskeletal impairment attributable to…the accident” as of his November 10, 2016 IE, despite opining she suffered sprains and soft tissue injuries.

[ 19 ] Ms. Goldlust, an Occupational Therapist, found that during her November 4, 2016 IE, C.J. displayed self-limiting behaviors due to a fear of experiencing any pain, and a very limited performance. She concluded C.J. is physically capable of performing sufficient tasks and not incapable of carrying on a normal life.

[ 20 ] The only medical evidence that meaningfully supports C.J. is Dr. Moshiri’s psychological IE, which diagnosed C.J. with an “Adjustment Disorder with mixed anxiety and depressed mood; specific phobias, vehicular”. Dr. Moshiri found the impairments were “partly” as a result of the accident”, explaining that the “diagnosis cannot be attributed solely to the…accident in light of the overlapping symptomologies with her pre-accident psychological conditions...”. Still, the doctor found it more likely than not that the accident “might have exacerbated the pre-accident symptomatologies (sic).”

[ 21 ] Dr. Moshiri concluded that while the accident “has been a source of psychological stress/discomfort and has caused substantial restriction in her activities of daily living,” C.J. does not suffer a complete inability to carry on a normal life as a direct result of this accident.

[ 22 ] I accept these IE reports as they are unchallenged by conflicting medical reports or records, appear logical on their surface and consistent with other evidence. I do not accept C.J.’s many arguments criticizing the reports and will address a few. For instance, while C.J.’s counsel argued the examinations were very brief, that claim was not supported by evidence. C.J. herself acknowledged she does not remember much about them. Dr. Moshiri’s report records her assessment being 2.5 hours, which appears to be the time spent before scoring the results.

[ 23 ] I do not accept C.J.’s argument that there was nefarious collusion simply because all reports are dated November 25, 2016 and contain quotes of the other IEs. For instance, Dr. Moshiri’s report quotes the other IEs that took place after her own IE. I find that these were multidisciplinary assessments, all scheduled in close succession, and that they reviewed each other’s findings.

[ 24 ] I also note that C.J.’s objection to Ms. Goldlust’s report was withdrawn. C.J. had produced a record from FSCO that her license was suspended on November 8, 2017⁵, but the document itself, while unclear, appears to be for failure to pay a fee. No other reason beyond pure conjecture was provided for the suspension period. During the hearing, Aviva found an online record that Ms. Goldlust was currently in good standing and shared it with C.J.’s counsel, resolving the objection. I also note Ms. Goldlust was in good-standing when the report was issued.

[ 25 ] In contrast, Aviva submits that the reports should be read as more favourable to it, given they were based on inaccurate information that C.J. supplied. I find some merit to Aviva’s point, as some of the history C.J. provided to Dr. Moshiri was not accurate, which I’ll discuss below.⁶

b. C.J. provided differing accounts of accident and life events

[ 26 ] Aviva submits that the evidence C.J. did present – her testimony – is not reliable as she has provided many different accounts of many different accident related and life events; C.J. submits she “withstood” cross-examination. While C.J. did provide some sensible answers, I agree with Aviva as the volume of inconsistent information in the record was striking and extensive, across many different subjects. I’ll mention several.

[ 27 ] Marriage: In October 2016, Dr. Moshiri records C.J. as advising C.J. was married for 6 years. Yet, a June 4, 2015 treating psychologist report by Dr. K. Siu, says she is a single and “lives by herself…for the past 5 years. She is not in a relationship at present.” During testimony she advised she was married at the time of the accident. Yet, T1’s for 2014-2018 indicate she was single.

[ 28 ] When asked about these discrepancies, she explained that “single” meant “not married,” but was living together and getting married – yet that does not explain why she told Dr. Siu that she was not in relationship and lives by herself. She further explained she meant she wasn’t “legally” married but that she did get legally married and was able to recall the day, month and wedding hall – but, oddly, not the year. When I inquired, she provided another answer: she had a religious ceremony, but never had a legal marriage.

[ 29 ] Similarly, on direct examination she testified that she separated 6 months after the accident, and six months later had a “full divorce”, but later advised that there is not a religious divorce process and actually meant the relationship ended.

[ 30 ] While I accept that that some of the confusion is based on a difference between religious and legal marriage and divorce process, that does not explain the at-times complete opposite factual assertions.

[ 31 ] Gym Attendance: Surveillance evidence showed C.J. attending a gym in April 2019. While this is clearly after the claim period, it contradicted C.J.’s testimony that her membership was on hold and her strong implication she had not returned. During cross-examination, she agreed her early testimony was that she cannot “currently” go to the gym, and but admitted that for health reasons she had started going approximately six months prior to the hearing until a month before the hearing.

[ 32 ] Marital Issues: She testified her marriage was in a good place pre-accident, and their divorce (separation) was due to the accident. However, Dr. Arif records C.J.’s partner’s infidelity in 2014 and her concern of other infidelities at that time. C.J. explained that was two years prior to the current accident, and that when she was mostly recovered from prior accidents (about 1.5 years prior to the current accident), her marriage improved. While it is possible it improved, it is not clear – or at least probable – to me that it did, as the records are silent on any improvement or consistent problems after those entries, and yet she testified that there were other marital problems and that the relationship ended. When asked why she did not report marital problems after the accident, she explained because her doctor cannot help, which infers to me that the silence of the records does not indicate improvement, but simply that she stopped reporting problems.

[ 33 ] Prior accidents: C.J. advised Dr. Moshiri that she was 50% recovered from the prior accidents at the time of this accident yet advised others such as Dr. Abuzgaya and testified that she was 90% recovered.

[ 34 ] More importantly, as Aviva submits, significant issues appear to have existed which contradict her assertion that she was doing well for a year-and-a-half until the accident, except for occasional feet, stomach, and depression issues. On June 4, 2014, she was diagnosed with major depressive disorder, and acknowledged to Dr. Moshiri that prior to the subject accident she was depressed and always moody, and her psychiatrist had passed away and she needed a new one. Family doctor records from 2014 mention her being referred to a psychologist and a physiotherapist. She also thinks she may have applied for ODSP in 2014 but was denied. In October 19, 2015, she had a tremor of her hands, irritability and mood swings. She advised that the “the left side of my abdomen is always in pain because of that cyst thing” diagnosed in 2015. In January 16, 2015, she complained of lower abdomen pain, anxiety, depression and weight issues. In March 22, 2016, she asked for painkillers for stomach pain. She also had “residual neck and low back pain” at the time of the 2016 accident.

[ 35 ] Childhood: C.J. advised Dr. Moshiri that she had a “happy childhood” and denied any abuse, yet when asked by Aviva about a June 6, 2014 doctor’s record that she had an “abusive family”, she agreed she had an abusive family, that at one point the family was homeless, and acknowledged being sexually assaulted.

[ 36 ] Prior Work/Educational History: C.J. provided several conflicting accounts of her work and educational history. Dr. S. Moshiri records her saying she has a B. Comm in HR from UTM in 2006, but during testimony said she only completed a year and half of school, but no degree.

[ 37 ] She also told Dr. Moshiri she was working for a HR recruiter from 2013 to 2015 but not at the time of accident. Yet, gastroenterologist Dr. Yogeswaran reports in February 27, 2018 that C.J. works fulltime in HR and has a drug plan.⁷ When asked about that discrepancy, C.J. thinks she was just stating her career field but not an actual job - “I have to say something” - and that the drug plan was Ontario Works. Still, the T1’s from 2014 to 2018 do not record any income for 2013-15 when she was working and only reports social assistance payments. She admitted she worked in HR in 2019, but an ability to work is inconsistent with her early testimony that she’s still “messed up.”

c. Key – and expected – corroborating evidence was missing

[ 38 ] Given the lack of supporting medical evidence and C.J.’s vague and inconsistent evidence, the lack of logically expected and available corroborating evidence was noticeable. While agreeing that it is C.J.’s onus to prove her claim, the parties made opposite submissions on this point. C.J. submitted that once she testified as to certain points – such as her gym and medication usage, her treatment, and her household activities – the evidentiary burden shifts to Aviva to refute those points, and since Aviva did not produce evidence in direct contradiction, the point is admitted. Aviva argued that in the context of this case, C.J.’s overall failure to produce corroborating evidence was a “fatal flaw.” I agree with Aviva.

[ 39 ] While C.J. testified to certain points, I find that is not the same as establishing them, particularly as her reliability is at issue – she even mentioned that her memory is not good and often said she could not remember when asked specifics. The missing corroborating documents – on so many subjects – were basic to C.J. establishing basic facts of her claim. For instance, her alleged dramatic change of gym usage could have been easily and objectively proven by her simply securing attendance records, yet she did not produce them or mention any attempt to do so. I fail to see how it was Aviva’s responsibility to get them – partially given the lack of reliability of C.J. as a witness and surveillance which shows at least some gym attendance.

[ 40 ] The same argument applies to the treatment records, testimony of her alleged caretaker niece, prescription records, massage records, among other records not produced - I would expect that is her evidence to lead. Again, all these records were either in her own possession or reasonably available to her.

CONCLUSION

[ 41 ] I do not find C.J.’s testimony reliable, and when considered against all of the inconsistencies, lack of medical support, and missing evidence that could support her claim, I have strong doubts that C.J. suffered a complete inability to carry on a normal life. To be clear, it is possible that her life was on an upswing prior the accident, but it appears much more likely that many of the problems she attributed to the accident previously existed, and in any event, while the accident many have caused a downturn, it was limited, and not to the extent it caused her a complete inability to carry on a normal life.

Order

[ 42 ] I find C.J. is not entitled to the NEB or interest. The application is dismissed.

Released: September 17, 2020

___________________________

Jeffrey Shapiro

Vice Chair

Footnotes

1. 1C.J. limited her claim to 104 weeks and confirmed that the two years run from the April 21, 2016 accident to April 21, 2018, as I have listed the issue. (See Transcript (“Tr.”) at p. 12-13, 58, 61, 91 and 200-201.) At other points, it appears C.J. was seeking the two years from eligibility or November 10, 2016, such as mentioning 104 weeks at $185, equaling $19,240. (Tr. page p. 12 (lines 9-10, 15-18, and 24-25). It appears eligibility starts on October 21, while November 10 is the denial date.
2. 2Schedule, sections 12 and 3(7)(a). The latter section further defines section 12.
3. 3Heath v. Economical Mutual Ins. Co., 2009 ONCA 391.
4. 4Exbibits 9, 11, and 12 (and Aviva’s Document Book Tabs 7, 8, 6), respectively.
5. 5Exhibit 8.
6. 6I note Dr. Moshiri reports that Patient Pain Profile’s internal validity score was reflective of invalid test results, but she did manage to offer a diagnosis.
7. 7Exbibit 10 (Tab 15)